Digital Commons Network^™

Does The Legal Standard Matter? Empirical Answers To Justice Kennedy’S Questions In Nken V. Holder, Christopher J. Walker

Christopher J. Walker

In response to Fatma Marouf, Michael Kagan & Rebecca Gill, Justice on the Fly: The Danger of Errant Deportations, 75 Ohio St. L.J. 337 (2014).

In Justice on the Fly: The Danger of Errant Deportations, Professors Fatma Marouf, Michael Kagan, and Rebecca Gill take on the ambitious task of answering the empirical questions posed by Justice Kennedy and others in Nken v. Holder with respect to the proper legal standard for judicial stays of removal in the immigration adjudication context. To answer these questions, the authors review, code, and analyze 1,646 cases in all circuits that hear immigration appeals and …

The Ordinary Remand Rule And The Judicial Toolbox For Agency Dialogue, Christopher J. Walker

Christopher J. Walker

When a court concludes that an agency’s decision is erroneous, the ordinary rule is to remand to the agency to consider the issue anew (as opposed to the court deciding the issue itself). Despite that the Supreme Court first articulated this ordinary remand rule in the 1940s and has rearticulated it repeatedly over the years, little work has been done to understand how the rule works in practice, much less whether it promotes the separation-of-powers values that motivate the rule. This Article is the first to conduct such an investigation—focusing on judicial review of agency immigration adjudications and reviewing the …

The Death Of Tax Court Exceptionalism, Stephanie Hoffer, Christopher J. Walker

Christopher J. Walker

Tax exceptionalism—the view that tax law does not have to play by the administrative law rules that govern the rest of the regulatory state—has come under attack in recent years. In 2011, the Supreme Court rejected such exceptionalism by holding that judicial review of the Treasury Department’s interpretations of the tax code is subject to the same Chevron deference regime that applies throughout the administrative state. The D.C. Circuit followed suit by rejecting the IRS’s position that its notices are not subject to judicial review under the Administrative Procedure Act (APA). This Article calls for the demise of another instance …

The Importance Of Cost-Benefit Analysis In Financial Regulation, Paul Rose, Christopher J. Walker

Christopher J. Walker

This report reviews the role, history, and application of cost-benefit analysis in rulemaking by financial services regulators.

For more than three decades — under both Democratic and Republican administrations — cost-benefit analysis has been a fundamental tool of effective regulation. There has been strong bipartisan support for ensuring regulators maximize the benefits of proposed regulations while implementing them in the most cost-effective manner possible. In short, it is both the right thing to do and the required thing to do.

Through the use of cost-benefit analysis in financial services regulation, regulators can determine if their proposals will actually work to …

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.

Toward Adequacy, Sarah L. Brinton

Sarah L Brinton

Each year, hundreds of people, companies, organizations, and associations sue the federal government for injuries they have suffered at the hands of federal agencies. Such suits are often brought under the judicial review provisions of the Administrative Procedure Act (“APA”), which Congress enacted expressly to allow broad access to courts in an age of increasing administrative agency action. By the terms of the APA itself, all final agency action for which there is no other adequate remedy in a court is reviewable under the APA.

But the very language meant to welcome such suits into court also acts as a …

How To Win The Deference Lottery, Christopher J. Walker

Christopher J. Walker

In response to Jud Mathews, Deference Lotteries, 91 Texas Law Review 1349 (2013).

In Deference Lotteries, Jud Mathews proposes that the deference framework in administrative law be viewed through the game theory lens of a lottery. Such an approach helps us think critically about how varying standards of review may affect the behavior of agencies and courts engaged in the judicial review process. This Response suggests that the lottery lens can also help agencies think more strategically about how to develop and defend interpretations of statutes they administer. Assuming the validity of the lottery framework, the Response suggests a playbook …

Changing Voices In A Familiar Conversation About Rules Vs. Standards: Veterans Law At The Federal Circuit In 2011, James Ridgway

James D. Ridgway

This review of the Federal Circuit's veterans benefits case law in 2011 suggests that a familiar struggle between rules and standards lurks under the surface of some of the more familiar debates in veterans law. In particular, it suggests that the struggle between Chevron deference and Gardner’s rule of resolving ambiguity in favor of the veteran can be framed this way. It also suggests that the rules-versus-standards framing can be used to better understand the debate about what it means for the benefits system to be veteran friendly. In addition, this article addresses the changing dynamics surrounding veterans law and …